Classification of men’s loungewear shorts

HQ 962834 August 16, 1999 CLA-2 RR:CR:TE 962834 gah CATEGORY: Classification TARIFF NO.: 6203.42.4050 Ms. Lesa R. Hubbard Customs Analyst J.C. Penney Purchasing Corporation 6501 Legacy Drive Plano, Texas 75024-3698 RE: Classification of men’s loungewear shorts Dear Ms. Hubbard: This is in response to your letter of March 30, 1999, submitted on behalf of J.C. Penney Purchasing Corporation, requesting a binding ruling on one style of men’s cotton woven shorts. FACTS: The subject merchandise consists of two samples, referenced style number 505-4104. The shorts are 100 percent woven cotton flannel. Both samples have a one-button fly front opening, no pockets and hemmed leg openings. Sample one, submitted in a size medium, has the exterior surface of its waistband covered with the flannel fabric, while the interior surface is exposed white elastic with the raised initials SJB woven into the elastic fabric and repeated around the waistband. Sample two, submitted in a size extra large, has an elastic waistband exposed on both sides, with the same woven design as in sample one repeated around the waistband. You ask that the shorts in question be classified in subheading 6207.91.3010, HTSUSA, as men’s cotton sleepwear. ISSUE: Are the goods properly classifiable as men’s pajamas in heading 6207, or as men’s outerwear shorts in heading 6203. LAW AND ANALYSIS: Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI. Heading 6207 covers, inter alia, men’s underpants, briefs, pajamas and similar articles. Heading 6203 covers, inter alia, men’s shorts. A tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise. Additional U.S. Rule of Interpretation 1(a). You state that the garment will be marketed by your sleepwear department. You argue that Customs has found seven features which indicate that a garment is underwear. If the garment fails to meet all of those features, classification as sleepwear will result. HQ 950731 dated March 5, 1992. To the contrary, the features listed therein were indicative of outerwear, any one of which was sufficient for classification as outerwear. The issue you present is whether or not the instant flannel shorts are sleepwear. HQ 950731 did not discuss sleepwear, and predates by five years the rationale Customs follows in distinguishing between sleepwear and outerwear shorts. In HQ 961036, Customs explained in detail the court guidance that we follow in distinguishing between sleepwear and loungewear for tariff purposes. In particular, the court in International Home Textile, Inc. v. United States, No. 94-06-00347, slip op. 97-31 (CIT March 18, 1997), aff’d, 153 F.3d 1378 (CAFC 1998), found that sleepwear is characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing). Overall, Customs believes that the classification of any loungewear is determined by the principal use of the class or kind of merchandise to which the goods belong, the specific features of the garment at issue and whether, when taken as a whole, the garment imparts a sense of private activity to the wearer. Your claim that the shorts will be sold by your retail sleepwear departments is unsupported by documentation. Our review of your recent catalogs indicate that these and similar shorts are advertised as loungewear. Our sources indicate that similar garments are advertised in newspapers, circulars and catalogs as loungewear. These facts indicate use as informal outerwear. Nonetheless, we have reviewed our rulings both before and after the International Home Textile case was resolved, with the following results. The shorts at issue are identical to those ruled on in HQ 960391, dated April 22, 1997, and HQ 954123, dated December 17, 1993, that is, they have flannel fabric, exposed or partially covered elastic waistband, one button mock fly and no pockets. Here, as in those matters, the flannel fabric is substantial enough to provide sufficient modesty for the garment to be worn at informal social occasions in and around the home. The one-button fly feature provides the type of coverage that would enable the shorts to be worn as outerwear. Further, the shorts are nearly identical to those ruled on in HQ 960868, dated September 14, 1998, HQ 960925, dated February 23, 1999, HQ 960346, dated April 10, 1997, HQ 957615, dated May 24, 1995, and HQ 956506, dated September 27, 1994, lacking only a fly to make them identical to those at issue here. In these case, we consistently found the garments to be principally used in and around the home as casual outerwear, rather than sleepwear or underwear. Following International Home Textile, we find that the shorts are not characterized by a sense of privateness or private activity, and are thus classifiable as outerwear shorts. HOLDING: The shorts are classified in subheading 6203.42.4050, which provides for men’s cotton shorts, dutiable at 17.2 percent ad valorem and carrying textile category 347. The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division